Interpretation and Scope of the Double Jeopardy Clause

The Double Jeopardy Clause of the Fifth Amendment prohibits the government from prosecuting a defendant more than one time for a single offense or imposing more than one punishment for a single offense. Only certain types of legal proceedings invoke double jeopardy protection. If a particular proceeding does not place an individual in “jeopardy,” then subsequent proceedings or punishments against that individual for the same conduct are not prohibited by this clause.

The text of the Fifth Amendment suggests that the protection against double jeopardy extends only to proceedings that threaten “life or limb.” However, the Supreme Court has extended the right against double jeopardy beyond capital crimes and corporeal punishments to all felonies, misdemeanors, and juvenile delinquency adjudications, regardless of the punishments they prescribe. At the same time, the Supreme Court has ruled that the right against double jeopardy precludes only subsequent criminal proceedings. It does not preclude a private litigant from initiating a civil proceeding against a defendant who has already been prosecuted for a crime, which explains why O.J. Simpson could be sued in civil court by the surviving family members of Ronald Goldman and Nicole Brown Simpson after he was acquitted in criminal court of murdering them.

A crucial question in any double jeopardy analysis is when jeopardy is said to have “attached.” In other words, courts must decide at what point during a criminal prosecution a defendant’s right against subsequent prosecution and multiple punishments began. Actions taken by the government before jeopardy attaches, such as dismissing an indictment, will not prevent later proceedings against a person for the same offense. Conversely, once jeopardy has attached, the full panoply of protections against subsequent prosecution and multiple punishments takes hold.

The Supreme Court has ruled that jeopardy attaches during a jury trial when the jury is sworn. In criminal cases tried by a judge without a jury, jeopardy attaches when the first witness is sworn. Jeopardy attaches in juvenile proceedings when the court first hears evidence. If the defendant or juvenile enters a plea agreement, jeopardy does not attach until the plea is accepted.

Determining when jeopardy terminates is no less important. Once jeopardy has terminated, the government cannot hail someone into court for additional criminal proceedings without raising double jeopardy questions. If jeopardy does not terminate at the conclusion of one proceeding, it is deemed to be continuing, and further criminal proceedings are permitted. Jeopardy can terminate in four instances: (1) after an acquittal; (2) after a dismissal of a charge; (3) after a mistrial that was not caused by the defendant; or (4) on appeal after a conviction.

The final question courts must resolve in double jeopardy litigation is whether successive prosecutions or punishments are for the same offense. Jeopardy may have already attached and terminated in a prior criminal proceeding, but the state may bring further criminal action against a person so long as it is not for the same offense. The U.S. Supreme Court has ruled that the government is allowed to prosecute an individual for more than one offense stemming from a single course of conduct only when each offense requires proof of a fact that the other offenses do not (see Blockburger v. United States, 284 U.S. 299 [1932]). Depending on the circumstances surrounding the single course of conduct, the Court has adopted various other tests in resolving this question and has allowed lower federal and state courts to do the same.